Maryland Casualty Company v. McGrath. W.

J-A26018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARYLAND CASUALTY COMPANY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
WARREN MCGRATH AND NANCY ZIHALA-
MCGRATH, MARTIN BURRIDGE D/B/A
BURRIDGE TENT RENTALS, MARTIN
BURRIDGE, INDIVIDUALLY
APPEAL OF: WARREN MCGRATH AND
NANCY ZIHALA-MCGRATH
No. 269 MDA 2015
Appeal from the Order Entered January 27, 2015
in the Court of Common Pleas of Luzerne County
Civil Division at No.: 2013 CV 8099
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 18, 2015
Appellants, Warren McGrath and his wife, Nancy Zihala-McGrath,
appeal from the order granting summary judgment in favor of Appellee,
Maryland Casualty Company and, in a related case, the order denying their
motion for summary judgment. We affirm on the basis of the trial court
opinion.
This is the first of two companion cases, which were listed
consecutively. The same parties are involved and the issues are similar. To
the extent possible, both of our decisions are identical.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A26018-15
The trial court filed one opinion which applies to both cases. (See
Trial Court Opinion, 1/27/15, at 1-10). In its opinion, the trial court fully
and correctly sets forth the relevant facts and procedural history of this
case. Therefore, we have no reason to restate them at length here.
For context and the convenience of the reader we note briefly that the
over-arching issue in both cases is the McGraths’ claim for coverage by
Maryland Casualty for their injuries from a motor vehicle accident involving
Martin Burridge, doing business as Burridge Tent Rental[s] (Burridge). As
the name suggests, Burridge operated a seasonal rental business which
provided tents, tables and chairs for outdoor activities, which he transported
in his pick-up truck. Burridge’s business was insured under a commercial
general liability policy (CGL) issued by Appellee Maryland Casualty. 1
On the day of the accident, Burridge’s load of tables and chairs
became unfastened from the tie-down straps and fell onto the roadway.
Warren McGrath was operating his motorcycle in the opposite direction when
he collided with a chair which had fallen off Burridge’s truck. His motorcycle
flipped, he was thrown, and he alleges he suffered multiple serious injuries.
The McGraths filed a complaint against Burridge. They argued, inter
alia, that Burridge improperly secured the load, and transported it in a
____________________________________________
1
The actual policy was apparently underwritten by Zurich North America
Small Business, an affiliate of Zurich Insurance Group Ltd., commonly known
as Zurich. Zurich is not a party to these appeals.
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negligent manner, failing to warn, and failing to remove the obstructions
from the roadway.
Appellee Maryland Casualty maintained that it had no duty to defend
or indemnify Burridge against a claim for damages arising out of a motor
vehicle accident because all claims fell within the auto exclusion of Burridge’s
CGL policy. The auto exclusion is defined to include loading and unloading of
a vehicle.
Maryland Casualty Company filed an amended complaint against the
McGraths and Burridge, seeking a declaratory judgment that it did not have
a duty to defend or indemnify Burridge for the liability alleged in the
McGraths’ complaint against him. Eventually, the parties cross-filed motions
for summary judgment. The trial court entered declaratory judgment in
favor of Maryland Casualty. This appeal followed.
The four overlapping questions raised in both of Appellants’ briefs are
identical:
1. Whether genuine issues of material fact exist such that
a grant of [s]ummary [j]udgment in favor of [Appellee] Maryland
Casualty is inappropriate?
2. Whether the allegations set forth in the underlying
[a]mended [c]omplaint fell within the [a]uto [e]xclusion of the
[Appellee] Maryland Casualty [p]olicy?
3. Whether [Appellee] Maryland Casualty does not have a
duty to defend or indemnify their insured Martin Burridge d/b/a
Burridge Tent Rentals or [Appellee] Martin Burridge, individually?
4. Whether the record supported the [trial c]ourt’s
conclusions that [the a]uto [e]xclusion of the Maryland Casualty
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[p]olicy is applicable based upon the facts of record and the
reasonable expectations of the insured?
(Appellants’ Brief, at 5).2
The McGraths argue from Burridge’s deposition that Burridge had a
reasonable expectation of coverage. On appeal they now maintain that the
representations of Maryland Casualty, Burridge’s expectation of coverage,
and the reasonableness of his expectation are issues of fact precluding
summary judgment (their own cross-motion for summary judgment
notwithstanding). (See Appellants’ Brief, at 41). We disagree.
Initially, we note our standard of review of a trial court’s
decision in a declaratory judgment action is narrow. Because
declaratory judgment actions arise in equity, we will set aside
the judgment of the trial court only where it is not supported by
adequate evidence. The test is not whether we would have
reached the same result on the evidence presented, but whether
the trial court’s conclusion can reasonably be drawn from the
evidence.
Nationwide Mut. Ins. Co. v. Cummings, 652 A.2d 1338, 1340-41 (Pa.
Super. 1994), appeal denied, 659 A.2d 988 (Pa. 1995) (citations omitted).
Summary judgment may be granted only where there is no
genuine issue of material fact, and the moving party is entitled
to judgment as a matter of law. Pa.R.C.P. 1035.2(1)[.] In
making this assessment, we view the record in the light most
favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
____________________________________________
2
Burridge filed a joinder, pursuant to Pennsylvania Rule of Appellate
Procedure 2137, joining in all briefs filed by or on behalf of the McGraths in
this appeal.
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against the moving party. The scope of review of an order
granting summary judgment is plenary. The standard of review
provides we reverse the trial court’s order only where the court
committed an error of law or clearly abused its discretion. To
the extent the issues before us are questions of law, our
standard of review is de novo; thus, we need not defer to the
lower court’s determinations.
Belden & Blake Corp. v. Commonwealth, 969 A.2d 528, 531 (Pa. 2009)
(case citations and quotation marks omitted).
[T]he interpretation of an insurance policy is a question of law
for the Court. Having so stated, we note that “where . . . the
language of [a] . . . contract [of insurance] is clear and
unambiguous, a court is required to give effect to that
language.” Standard Venetian Blind Co. v. American
Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (1983).
Duffy v. Nationwide Ins. Co., 542 A.2d 144, 145 (Pa. Super. 1988) (one
citation omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court we conclude
that there is no merit to the issues Appellants have raised on appeal. The
trial court opinion properly disposes of the questions presented. (See Trial
Court Order and Opinion, 1/27/15, at 6-10) (concluding: (1) no genuine
issues of material fact existed to preclude summary judgment; (2) the
allegations of the underlying complaint fell within the auto exclusion of the
policy; (3) Appellee Maryland Casualty does not have a duty to defend or
indemnify their insured Martin Burridge d/b/a Burridge Tent Rentals or
Martin Burridge, individually based on the plain meaning of the policy’s auto
exclusion; (4) the auto exclusion of the CGL policy also applies to Appellants’
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allegations of failure to warn and failure to remove obstacles from the
roadway; and (5) the reasonable expectations doctrine does not apply to
protect a commercial insured from the plain meaning of the exclusion in a
commercial general liability policy). Accordingly, we affirm on the basis of
the trial court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2015
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MARYLAND CASUALTY COMPANY, :
F IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
Plaintiff
vs.
CIVIL ACTION - LAW-'
WARREN MCGRATH, NANCY ZIHALA-
MCGRATH, MARTIN BURRIDGE D /B /A
BURRIDGE TENT RENTALS AND
MARTIN BURRIDGE, INDIVIDUALLY,
Defendants No. 2013 -CV-8099
w
OPINION
This matter comes before the Court on the Motion for Summary
Judgment, filed by Defendants Warren McGrath and Nancy Zihala- McGrath to
the Amended Complaint on March 21, 2014 and the Cross -Motion for Summary
Judgment, filed by Plaintiff Maryland Casualty Company on April 21, 2014.
Supporting briefs, responses /opposing briefs have been filed by the parties to the
aforesaid motions. Oral argument on the aforesaid motions having been
conducted on August 20, 2014, this opinion follows.
Procedural History
Plaintiff commenced the above- refeler!Led action on or about July 8, 2013
by filing a Praecipe for Writ of Summons against Defendants. A Complaint was
filed on August 20, 2013 and an Amended Complaint was filed on February 24,
2014. On March 3, 2014 and March 17, 2014, respectively, Defendants filed
Answers with New Matter to aforesaid Amended Complaint. The above -recited
procedural history demonstrates that the relevant pleadings are closed and /or
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that the time for filing a response to the last filed pleading has expired, and
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therefore that the Cross Motions for Summary Judgment are timely filed and
pursued under Pa.R.C.P. 1035.2.
Procedures Governing Motions for Summary Judgment
Under Pa.R.C.P. 1035.2:
After the relevant pleadings are closed, but within such time
as not to unreasonably delay trial, a party may move for summary
judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact
as to a necessary element of the cause of action or defense which
could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the
motion, including the production of expert reports, an adverse party
who will bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or defense which
in a jury trial would require the issues to be submitted to a jury.
Hence, a motion for summary judgment is based upon an evidentiary
record which entitles the moving party to judgment as a matter of law, and which
is one of two types: (1) the record shows the material facts are undisputed, and
hence no issue exists to be submitted to a jury, or (2) the record contains
insufficient evidence of facts to make out a prima facie cause of action or
defense, and hence there is no issue to submit to a jury. In the latter instance,
the motion for summary judgment is made by a party whn Meg not have the
burden of proof at trial and who does not have access to the evidence to make a
record, which affirmatively supports the motion.
The burden of responding to a motion for summary judgment is set forth in
Pa.R.C.P. 1035.3:
(a) The adverse party may not rest upon the mere
allegations or denials of the pleadings but must file a response
within thirty days after service of the motion identifying
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(1) one or more issues of fact arising from the evidence in
the record controverting the evidence cited in support of the motion
or from a challenge to the credibility of one or more witnesses
testifying in support of the motion, or
(2) evidence in the record establishing the facts essential to
the cause of action or defense, which the motion cites as not
having been produced.
In responding to a motion for summary judgment, an adverse party under
Pa.R.C.P. 1035.2(b) may supplement the record or set forth the reasons why
the party cannot present evidence essential to justify opposition to the motion
and any action proposed to be taken by the party to present such evidence." In
resolving a motion for summary judgment, the court under Pa.R.C.P. 1035.2(c)
"may rule upon the motion for judgment or permit affidavits to be obtained,
depositions to be taken or other discovery to be lead or make such order as is
just."
Finally, under Pa.R.C.P. 1035.3(d), the court is permitted to enter
summary judgment against a party who does noi: respond.
Resolution of Motion for Summary Judgment
The issue in the instant matter is whether under the relevant Maryland
Casualty Company commercial general liablity insurance policy, winuh was
issued to Martin Burridge DBA Burridge Tent Rentals ( "Insured "), Maryland
Casualty has a duty to defend or indemnify the Insured in the underlying action
filed against the Insured by Warrant McGrath and Nancy Zihala McGrath
( "McGrath ") to Luzerne County Docket Number 10269 of 2012. Specifically, the
question before this Court is whether the underlying action only alleges bodily
injury arising out of the ownership, maintenance and /or use of a motor vehicle.
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From a review of the policy at issue and the relevant precedent, the Court finds
the underlying action so alleges and as a result, Maryland Casualty does not
have a duty to defend or indemnify in this case for the reasons discussed herein.
Although the factual and procedural history is well known to the parties, a
brief summary of the facts remains necessary. On August 17, 2011, Defendant
Warren McGrath was riding his motorcycle on Hillside Road in Jackson
Township, Pennsylvania. At the same time and place, Defendant Martin
Burridge, in the course and scope of his agency and /or employment with
Defendant Burridge Tent Rentals, in the opposite lane of travel of Defendant
Warren McGrath, was transporting at least 70 folding chairs and 10 folding tables
in the back of his pickup truck as part of the business of Defendant Burridge Tent
Rentals. The folding tables were set upright on the left side of the truck bed.
Defendant Martin Burridge had stacked the chairs in two horizontal piles of 35
chairs each on the right side of the truck bed, positioning one stack in front of the
other.
Defendant Burridge secured this load of chairs and tables by using 2 nylon
ratctret -type lle-duwrr 5lraps lloo u the Led of the pickup truck.
process of transporting the load of chairs and tables to a customer, the road
curved to the right and the load of chairs and tables became loose, shifted to the
left, and fell from the bed of the pickup truck into the roadway directly into the
path of Defendant Warren McGrath, who was traveling in the opposite direction.
Defendant Warren McGrath attempted to swerve to avoid the chairs, but the rear
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tire of his motorcycle hit a chair in the roadway and his motorcycle flipped. He
was thrown from the motorcycle and suffered injuries.
At the time Defendant Warren McGrath was injured, Martin Burridge DBA
Burridge Tent Rentals ( "Insured ") was insured by a Maryland Casualty
commercial general liability insurance policy ( "Policy ").1 In relevant part, the
Policy provided:
SECTION I - COVERAGES
COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE
LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally
obligated to pay as damages because of 'bodily injury' or
'property damage' to which this insurance applies. We will
have the right and duty to defend insured against any 'suit'
seeking those damages. However, we will have no duty to
defend the insured against any 'suit' seeking damages for
'bodily injury' or 'property damage' to which insurance does
not apply. . .
See, CGLCF at 1 of 17.
2. Exclusions
g. Aircraft, Auto or Watercraft
'Bodily injury' or 'property damage' arising out of the
ownership, maintenance, use or entrustment to others of any
aircraft, 'auto' or watercraft owned or operated by or rented
or loaned to any insured. Use includes operation and
'loading or unloading'....
There are several different types of coverages provided under the Policy. Although the Policy in
its entirety is attached as Exhibit "A" to the Motion for Summary Judgment of Defendants Warren
McGrath and Nancy Zihala- McGrath to Amended Complaint, the Commercial General Liability
Coverage Form ( "CGLCF "), which consists of 17 numbered pages, contain the provisions of the
Policy applicable to the resolution of the instant matter. Citations to this document will be CGLCF
atp._of17.
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See, Id. at 2 of 17.
SECTION V - DEFINITIONS.
2. 'Auto' means a land motor vehicle, trailer or semitrailer designed for
travel on public roads, including any attached machinery or
equipment. But `auto' does not include `mobile equipment'.
* **
11. 'Loading or unloading' means the handling of property:
a. After it is moved from the place where it is accepted for
movement into or onto an aiircraft, watercraft or 'auto';
b. While it is in or on an aircraft, watercraft or `auto';
c. While it is being moved from an aircraft, watercraft or `auto'
to the place where it is finally delivered;
but `loading or unloading' does not include the movement of
property by means of a mechanical device, other than a hand truck
that is not attached to the aircraft, watercraft or `auto'.
Id. at 14 -15 of 17.
As noted above, the issue in the instant matter is whether the August 17,
2011 accident falls within the aforesaid "Aircraft, Auto or Watercraft" Exclusions
and correspondingly whether there is any duty to defend or indemnify by
Maryland Casualty under the Policy. The interpretation of an insurance contract
regarding the existence or non -existence of coverage is "generally performed by
the court." General Accident Insurance Co. of America v. Allen, 692 A.2d 1089,
1093 (Pa. 1997). "Where a provision of a policy is ambiguous, the policy
provision is to be construed in favor of the insured and against the insurer....
Where, however, the language of the contract is clear and unambiguous, a court
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is required to give effect to that language." Gene & Harvey Builders, Inc. v.
Pennsylvania Manufacturers' Association Insurance Company, 512 Pa. 420, 517
A.2d 910, 913 (1986).
"The underlying complaint fixes the parameters of an insurer's obligation
to defend its insured." Stidham v. Millvale Sportsmen's Club, 618 A.2d 945(Pa.Super. 1992) quoting Hartford Mutual Insurance Company v. Moorhead, 578
A.2d 492, 494 -495 (Pa. 1990). The obligation of an insurer to defend an action
against the insured is fixed by two considerations: (1) the language of the policy
itself and (2) the allegations in the underlying complaint. See, Gene's Restaurant,
Inc. v. Nationwide Ins. Co., 548 A.2d 246 (Pa. 1988); Erie Ins. Exchange v.
Fidler, 808 A.2d 587 ( Pa.Super. 2002); Britamco Underwriters, Inc. v.
Grzeskiewicz, 639 A.2d 1208 (Pa.Super. 1994). Therefore, in order to determine
whether a claim may potentially come within the coverage of a policy, as required
for the insurer to be obligated to defend, a court must first ascertain the scope of
insurance coverage and then analyze the allegations in the complaint. See,
Britamco Underwriters, Inc. v. Grzeskiewicz, 639 A.2d 1208 (Pa.Super. 1994).
The duties to defcnd and indemnify arc deemed as separate and distinct:
While the duty to defend can "be determined merely on the basis of whether the
factual allegations in a complaint potentially state a claim against the insured"
such that duty to defend thereby "arises whenever the claims asserted by the
injured party potentially come within the coverage of the policy, ... the duty to
indemnify arises only when the insured is determined to be liable for damages
within the coverage of the policy." See, Regis Ins. Co. v. All American
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Rathskeller, Inc., 976 A.2d 1157, 1161 (Pa.Super. 2009) (internal citations
omitted). See also, General Accident Insurance Co. y. Allen, 692 A.2d 1089,
1095 (Pa. 1997). Although an insurer's duty to defend is separate from and
broader than the insurer's duty to indemnify, both duties flow from a
determination that the underlying complaint triggers coverage. See, General
Accident Ins. Co. of America v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095
(1997).
The above -cited language from the Policy clearly provides that Maryland
Casualty does not have a duty to defend or indemnify for bodily injuries that arise
out of "use" of an "auto ". See, CGLFC at 4 of 17. "Use" includes "loading and
unloading ", which is defined by the Policy to include, but is not limited to, "the
handling of property ... while it is in or on an ... `auto ". See, CGLFC at 14 -15
of 17. As a result, the question before the Court is whether the allegations in the
Amended Complaint in the underlying action fall within this definition.
The Amended Complaint in the underlying action alleges that the Insured
failed to secure the chairs and tables properly when the same were loaded onto
the pickup truck. This alleyect failure cause cl an s dnd tables to fall from the
pickup truck, onto the road directly into the path of Defendant Warren McGrath,
who was traveling in the opposite direction. Defendant Warren McGrath
attempted to swerve to avoid the chairs, but the rear tire of his motorcycle hit a
chair in the roadway and his motorcycle flipped. He was thrown from the
motorcycle and suffered injuries. This alleged failure to secure the chairs and
tables clearly falls within the definition of "loading and unloading ", as defined at
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Section V, Paragraph 11 of the CGLCF, i.e., the alleged negligence involves the
handling of property (chairs and tables) while the property is in or on the auto
(Insured's pickup truck).
The Amended Complaint in the underlying action also alleges that the
Insured is liable for failing to remove an obstruction (i.e., the tables and chairs,
which fell from the Insured's pickup truck) on the roadway and /or for failing to
warn operators of vehicles on the roadway of the dangerous condition (i.e., the
fallen tables and chairs) that the Insured created. The Court must also consider
whether these allegations arise out of the "loading or unloading" of the "auto" so
as to fall within the Exclusion at issue.
When the words "arising out of" the use of an automobile in an insurance
exclusion clause, as is found in the Policy, "it must be concluded that this clause
acts to exclude only those injuries which are proximately caused by the
automobile" (or, with respect to the specific provision of the Policy, the handling
of property while it is in or on the automobile.) See, Eichelberger v. Warner, 434
A.2d 747, 752 (Pa.Super. 1981). "Proximate causation is defined as a wrongful
act which was a sutistantIdl factor m bringing about the plaintiff's harm." L
Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa.Super. 2005).
The record is clear that the substantial factor in bringing about the harm to
Defendant Warren McGrath was the Insured's alleged failure to secure the chairs
and tables properly when the same were loaded onto the pickup truck. This
alleged failure clearly was the substantial factor that caused the obstruction
which the Insured failed to remove and the dangerous condition of which the
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Insured failed to warn. As a result, these allegations likewise fall within the
exclusion provision at issue in the policy as the bodily injury is alleged to have
arisen out of the handling of property while said property is in or on the
automobile.2
Accordingly, the allegations set for in the underlying Amended Complaint
fall entirely with the Auto Exclusion in the Maryland Casually Policy, and we enter
the following
End of Decision
Order on Separate Page
2
In addition, Defendants argue that the reasonable expectation of the Insured is that the Policy
would provide coverage of the bodily injury. However, the reasonable expectations doctrine is
applied in very limited circumstances. Madison Construction Co. v. Harleysville Mutual Ins. Co.,
735 A.2d 100, 109 n.8 (Pa.1999). It has only been applied to protect non -commercial insureds
from policy terms not readily apparent and /or to protect non-commercial insureds from deception.
See, Collister v. Nationwide Life Ins. Co., 388 A.2d 1346 (Pa. 1978) (applying doctrine to protect
non -commercial insured from policy terms not readily apparent); Tonkovic v. State Farm Mut.
Auto. Ins. Co., 521 A.2d 920 (Pa. 1987) (applying doctrine to protect non -commercial insured
from deception). Since the Court has not found any ambiguity in the terms of the Policy and there
is no evidence of record to support any allegation of deception or even a representation by
Plaintiff or its agents, the reasonable expectation doctrine does not apply in this case.
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MARYLAND CASUALTY COMPANY, : ¡ IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
Plaintiff
vs.
f---i,
CIVIL ACTION - LAW
WARREN MCGRATH, NANCY ZIHALA-
MCGRATH, MARTIN BURRIDGE D /B /A
ó r
BURRIDGE TENT RENTALS AND vd r--1G
MARTIN BURRIDGE, INDIVIDUALLY,
c'
Defendants : No. 2013-CV-8099 -o
ORDER
N
Now, this a day of , 2015, it is hereby ORDERED,
ADJUDGED AND DECREED as follows:
(1) The Motion for Summary Judgment, filed by Defendants Warren
McGrath and Nancy Zihala- McGrath to Amended Complaint, on March 21, 2014,
is hereby DENIED for the reasons set forth in the attached opinion.
(2) The Cross -Motion for Summary Judgment, filed by Maryland Casualty
Company, on April 21, 2014, is hereby GRANTED for the reasons set forth in the
attached opinion.
(3) Declaratory Judgmcnt is hereby entered in favor of Plaintiff Maryland
Casualty Company declaring that the allegations set forth in the underlying
Amended Complaint fall entirely with the Auto Exclusion in the Maryland
Casualty Policy, and that the applicability of this exclusion is sufficient to bar
coverage for the claim arising out of the underlying action. Plaintiff Maryland
Casualty Company, therefore, has no duty to defend or indemnify Defendants
Martin Burridge d /b /a Burridge Tent Rentals or Defendant Martin Burridge
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individually, for or against the allegations and damages set forth in the Luzerne
County action, docketed at Luzerne County Docket No, 10269 -2012.
(4) The Prothonotary is directed to enter this Order of record, and to mail a
copy of this Order to all counsel of record pursuant to Pa.R.C.P. 236.
By the Court:
,.,-.e.a
Counsel:
Brigid Q. Alford, Esquire
100 Corporate Center Drive, Suite 201
Camp Hill, Pa 17011
Julia Munley, Esquire
227 Penn Avenue
Scranton, PA 18503
Daniel E. Cummings, Esquire
700 Electric Building
507 Linden Street
Scranton, PA 18503
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